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“Disenfranchising The Electorate”: The Questions That Will Decide The Fate Of Voting Rights In North Carolina

Three lawsuits have been filed challenging North Carolina’s new voter suppression law, which I called the worst in the nation and Rick Hasen says is the most restrictive since the passage of the Voting Rights Act in 1965. Now comes the question: Will the challenges be successful? Here are three factors that will decide the outcome in North Carolina and the future of the VRA and voting rights more broadly.

1. Can Section 2 replace Section 5 of the VRA?

Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Court’s decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst history of voting discrimination to approve their voting changes with the federal government. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 “the heart of the VRA” and said “there’s no reason for Congress to take any action” to resurrect Section 5 with a new coverage map.

This is a clever and disingenuous marketing job. In truth, Section 2 has been used almost exclusively to protect majority-minority districts during redistricting and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasn’t filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. It’s difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. “This is one of the fixes we need from Congress,” says Spencer Overton, a professor at George Washington University Law School. “We need some better, clearer standards for Section 2. The law is not well-developed.” Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.

Under Section 5, the burden would have been on North Carolina to prove that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, DOJ or the courts would have almost certainly blocked its implementation. The strong evidence of racial discrimination in this case shows the urgent need for Congress to resurrect Section 5.

The outcome under Section 2 “will depend on a lot of discretionary factors instead of a straightforward law, which is why Congress needs to update the VRA,” says Overton. “It’s uncharted territory, so no one really knows what will happen,” says Dale Ho, director of the ACLU’s voting rights project. The federal lawsuits have been assigned to Judge Thomas Schroeder of the Middle District of North Carolina, a George W. Bush appointee regarded as an establishment Republican.

2. Did North Carolina Republicans intentionally discriminate against minority voters?

Lawsuits brought by the North Carolina NAACP and the ACLU ask that North Carolina be covered under Section 3 of the VRA, so that they must seek federal approval of their voting changes for a period of time, based on a “preponderance of evidence” of intentional discrimination. DOJ recently asked a court to do this with Texas. “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment, and thus coverage under Section 3(c) is mandated under the Voting Rights Act,” the ACLU plaintiffs in North Carolina write.

The lawsuits argue that clear evidence of the law’s discriminatory burden on African-Americans—who were disproportionately more likely to lack ID and to use early voting and same-day voter registration, for example—was presented during the legislative debate and that Republican sponsors of the bill did nothing to alter the legislation. “After Shelby County v. Holder, the courts are going to have to take these intent claims seriously,” says Penda Hair, co-director of the Advancement Project, which filed suit on behalf of the North Carolina NAACP.

But North Carolina could argue, like Texas, that its law was simply aimed at disenfranchising Democrats, not minorities, and thus is not intentionally discriminatory. Proving intentional discrimination in court is very difficult. One change Congress could easily make is for Section 3 to cover voting changes that have a discriminatory impact, not intent. Under that standard, North Carolina would almost certainly have to clear its voting changes with the feds for a period of time.

3. Will voter suppression efforts produce an electoral backlash among minority voters?

It’s almost considered a truism today that laws meant to disenfranchise minority voters will motivate more minority voters to cast a ballot in order to defend their most sacred right, since that’s what happened in 2012. But the backlash against voter suppression in the last election was the result of a number of unique factors: an extremely well-organized and well-funded Obama campaign, a poorly run Romney campaign that did almost no outreach to minority voters and the fact that many of the new voting restrictions were blocked or repealed in key battleground states like Ohio, Wisconsin and Pennsylvania.

We shouldn’t assume that such a backlash will become the new normal, especially as more onerous laws are put on the books in the wake of the Supreme Court’s decision. “The 2012 election was an anomaly, because of the candidate and campaign at the top of the ticket,” says Overton. “In primaries, off-year elections, midterms, the resources aren’t there to mobilize people to the polls.” And even if the impact of a new voting restriction is ultimately tempered or overcome, that doesn’t make attempts to restrict the right to vote any less immoral. “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts. But you shouldn’t have to redouble your efforts in order to vote.”

That said, North Carolina is one of the states where you could potentially see a higher turnout as a result of the legislature’s draconian overreach. First off, the Republican legislature is deeply unpopular, with a 20 percent approval rating, and so is the new voting bill, with 39 percent approving and 50 percent disapproving. Seventy percent of moderates and 72 percent of African-Americans dislike the legislation. Second, the well-organized Moral Monday coalition has been mobilizing people against the legislature’s actions for months and is strongly positioned to get a lot of people to the polls. Third, the litigation against the law will keep this story in the news and make more people aware of its onerous details. Fourth, there is a competitive Senate race in North Carolina that could decide the balance of power nationally, with Democrat Kay Hagan likely facing North Carolina Speaker of the House Thom Tillis, who was named “legislator of the year” by the American Legislative Exchange Council in 2011 and is closely tied to all of the unpopular legislation passed by the General Assembly.

Republicans have done everything possible, through aggressive racial gerrymandering and onerous new voting restrictions, to protect their majorities in 2014 and beyond. In so doing, they’ve alienated a large segment of the electorate. The next election will be a good test case of the extent to which power-hungry politicians can successfully manipulate the democratic process in order to thwart the will of the people.

 

By: Ari Berman, The Nation, August 14, 2013

August 15, 2013 Posted by | Civil Rights, Voting Rights Act | , , , , , , , | 1 Comment

“We Only Discriminate For Partisan Reasons”: Texas Struggles To Defend Discriminatory Voting Policies

It’s been about three weeks since the Justice Department, relying on what’s left of the Voting Rights Act, went after voter-discrimination policies in Texas. The U.S. Supreme Court may have severely damaged the VRA, but the Justice Department nevertheless argued that when “intentional voting discrimination” is found, changes to voting rights cannot be permitted to continue.

This week, as Adam Serwer reported, Texas submitted a brief presenting their defense.

Texas didn’t discriminate against minority voters. It was only because they were Democrats. And even if it did, the racial discrimination Texas engaged in is nowhere near as bad as the stuff that happened in the 1960s.

These are some of the arguments the state of Texas is making in an attempt to stave off federal supervision of its election laws. In late July, citing the state’s recent history of discrimination, the Justice Department asked a federal court to place the entire state back under “preclearance.” That means the state would have to submit its election law changes in advance to the Justice Department, which would ensure Texas wasn’t disenfranchising voters on the basis of race.

The arguments from Gov. Rick Perry’s (R) administration are pretty amazing, especially considering federal courts already found Texas’ election policies discriminatory as recently as two years ago, before the Supreme Court intervened.

As Kevin Drum explained, Texas’ first argument, as pushed by state Attorney General Greg Abbott, “is that, sure, Texas has tried to discriminate as recently as 2011, but their efforts were overturned by a court. So that means there are no current violations, and thus no reason to grant any kind of ‘equitable relief.'”

The second argument is the half-glass-full tack. As Serwer put it, “[T]he state claims, even if Texas did discriminate, and the state stresses that it did not, it was nothing as bad as ‘the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that originally justified preclearance in 1965.’ So as long as Texas skies aren’t alight with flames from burning crosses, what’s the big whoop?”

But it’s the third argument that’s truly amazing.

From the brief filed by the state:

DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats….The redistricting decisions of which DOJ complains were motivated by partisan rather than racial considerations, and the plaintiffs and DOJ have zero evidence to prove the contrary.

Got that? Texas wasn’t trying to discriminate against racial and ethnic minorities; Texas was simply trying to discriminate against racial and ethnic minorities who vote for Democrats.

In other words, Texas’ defense is that state policymakers were trying to crush the Democratic vote, and this led to inadvertent discrimination against African Americans and Latinos. As such, the argument goes, Texas was motivated by crass partisanship, and not racism, so the discrimination doesn’t really count.

Any chance this might be persuasive in court? Brenda Wright, a voting law expert with the liberal think tank Demos, told Serwer, “I don’t think it’s going to work, frankly. The mere desire to achieve partisan advantage does not give Texas a free hand to engage in racial discrimination. If the only way you can protect white incumbents is by diluting the voting strength of Hispanic citizens, you are engaging in intentional racial discrimination, and the courts will see that.”

 

By: Steve Benen, The Maddow Blog, August 13, 2013

August 14, 2013 Posted by | Racism, Voting Rights | , , , , , , , | 1 Comment

“Simply Breathtaking”: North Carolina Gov Pat McCrory Approves Sweeping Voter-Suppression Measures

That this outcome was inevitable doesn’t make it any less offensive.

Gov. Pat McCrory Monday signed into law a bill requiring voters to produce a photo ID when they go to the polls, a measure that was hailed by Republicans as a means for heightening ballot security but which was criticized by Democrats as a thinly disguised effort at voter suppression.

The bill was passed along partisan lines by the Republican majority in the legislature, over strong opposition of Democrats.

The Republican governor released a video this afternoon, explaining his reasoning over the course of 96 seconds, arguing that he approved the “common sense” state legislation in the interest of the “integrity of our election process.”

McCrory added that the “extreme left” has relied on “scare tactics.”

Unfortunately for North Carolinians, the governor has no idea what he’s talking about. (In fact, as of two weeks ago, he literally didn’t know — McCrory was praising the legislation despite not having read it, and couldn’t answer basic questions about proposals he’d already publicly endorsed.)

The governor kept using the phrase “common sense,” but when it comes to voting rights, I don’t think that means what he thinks it means.

As we discussed a few weeks ago, we’ve seen plenty of “war on voting” measures over the last few years, but North Carolina Republicans pushed the envelope in new and offensive directions. Barbara Arnwine, president of the Lawyers Committee for Civil Rights Under Law, said during the legislative fight, “This is the single worst bill we have seen introduced since voter suppression bills began sweeping the country.”

The scope is simply breathtaking — the new state law imposes voter-ID restrictions never needed before in North Carolina, narrows the early-voting window, places new restrictions on voter-registration drives, makes it harder for students to vote, ends same-day registration during the early voting period, and makes it easier for vigilante poll-watchers to challenge eligible voters.

And why on earth would Republicans consider all of this necessary? Was there a widespread outbreak of voter fraud that necessitated the most sweeping new voter-suppression tactics seen anywhere in the nation? Of course not. For one thing, since 2000, there are exactly two incidents — not two percent, literally two individuals — involving suspected voter impersonation in North Carolina, out of several million votes cast. You’re far more likely to find someone struck by lightning in the state than find an improperly-cast ballot.

For another, many of the measures signed into law today — including narrowing the early-voting window — have nothing to do with improving the integrity of the process or preventing fraud, and everything to do with making it more difficult for people to participate in their own democracy.

These are not “scare tactics” from the “extreme left”; these are simply facts.

Up until fairly recently, there’s no way North Carolina’s new voter-suppression campaign would be approved by the Justice Department, but after five Republican-appointed justices on the Supreme Court gutted the Voting Rights Act, the DOJ did not have an opportunity to consider the proposal before it was signed into law.

Attorney General Eric Holder has already challenged new measures in Texas under the remaining elements of the VRA; we’ll know soon enough whether North Carolina is added to the mix.

 

By: Steve Benen, The Maddow Blog, August 12, 2013

August 13, 2013 Posted by | Voting Rights, Voting Rights Act | , , , , , , , | Leave a comment

“Suppressing The Vote”: For The GOP, “Integrity Of The Ballot” Is A Deceptive Myth

Now that the U.S. Supreme Court’s hyper-conservative faction has neutered the Voting Rights Act, Republican officials around the country have re-energized their campaign to block citizens of color from voting.

Florida Gov. Rick Scott surprised no one last week when he announced that he would resume a controversial and clearly partisan purge of the voting rolls, supposedly to clear them of non-citizens. Nor is there any shock in the decisions by officials in Texas, Alabama and Mississippi to proceed with harsh new voter ID laws.

While Republicans contend the new laws and purges are necessary to protect the integrity of the ballot, that stale defense no longer merits extensive debate. It’s obvious that GOP activists have but one purpose in changing laws that affect voting and registration: putting up obstacles that might suppress the franchise among voters who usually support Democrats.

Actually, a few have admitted as much. Last year, Republican Mike Turzai, House majority leader in the Pennsylvania legislature, bragged about the passage of a strict new voter ID law, claiming it would “allow Gov. Romney to win the state of Pennsylvania.” Though Romney lost Pennsylvania on his way to overall defeat, the state’s GOP chairman still said earlier this year that voter ID “probably helped a bit” in cutting President Obama’s margin of victory from 2008.

A similar admission came from Republican campaign consultant Scott Tranter when he spoke at a post-election analysis hosted last December by the Pew Center on the States. He dismissed the idea of bipartisan cooperation to eliminate the long lines and other dismal conditions that had plagued voting in many areas.

“… At the end of the day, a lot of us are campaign professionals and we want to do everything we can to help our sides. Sometimes we think that’s voter ID, sometimes we think that’s longer lines, whatever it may be,” Tranter said.

Not that you needed those admissions to know that the GOP-led campaign to “protect the integrity of the ballot” is phony, the 21st-century version of the poll tax. Remember when Alan Wilson, South Carolina’s Republican attorney general, claimed last year that hundreds of dead people had voted in his state?

Ah, never happened. As you might expect, zombies have little interest in electoral politics. State authorities investigated and found no — zip, zero, zilch — zombie voters there.

Wilson made his claims in defense of a strict new voter ID law, one of the GOP’s more popular methods for suppressing the franchise. Supposedly, the requirement for showing state-sponsored identification, such as a driver’s license, would prohibit not only the dead but also other unworthies who claim to be legitimate voters. There is just one problem with that theory: Voter impersonation is virtually non-existent.

But voter ID laws do serve the purpose for which they are actually intended. They pose an obstacle for thousands of elderly and poor Americans who lack driver’s licenses, most of whom tend to support Democrats.

Florida, where Scott is proceeding with his purge, is a particularly interesting case. According to Florida Democratic strategist Steve Schale, the state has gained 1.5 million registered voters since 2006. Of those, 61 percent are blacks or Latinos, both strong constituencies for the Democratic Party. It’s no wonder, then, that Florida Republicans have worked so hard to block the franchise among those voters.

You may have noticed, though, that voter suppression hasn’t helped the GOP win presidential elections in the last two cycles. Indeed, their tactics may have given Obama the winning edge in Florida in 2012: Black voters were so angered by obvious attempts to discourage them from voting that they turned out in huge numbers, enduring long lines.

Given that reality, some conservatives believe the GOP should give up its emphasis on blocking the ballot. As The New York Times‘ Ross Douthat has written: “the GOP is … sending a message to African-Americans that their suspicions about conservatism are basically correct, and that rather than actually doing outreach to blacks, the right would rather not have them vote at all.”

Indeed, there is no reason for black voters to believe anything else.

 

By: Cynthia Tucker, The National Memo, August 11, 2013

August 12, 2013 Posted by | Voting Rights | , , , , , , , , | Leave a comment

“We Already Know What We Need”: Why Haven’t We Fixed Our Crummy Voting System Yet?

“We gotta fix that,” the president said in his victory speech last November, following his reelection. The “that” in need of fixing was our broken and unequal election system. And we all agreed. There should be fixing. So why hasn’t there been any yet?

As you may recall, one subplot in the national telenovela that was the last presidential election involved the very purposeful attempted disenfranchisement, by Republican state legislators and officials, of certain key Democratic voters, which is to say poor and black people. This took many forms, from poorly drawn-up supposed lists of felons to be thrown off the voter rolls to the legal harassment of groups engaged in voter registration, but the most common tool was the voter ID law. On Election Day, while most black Americans managed to have their votes counted, the pictures told a distressing story across the country: In neighborhoods made up primarily of minorities, people waited hours to vote. In white neighborhoods the process was quick and easy.

There are plenty of working Americans who would lose their jobs if they spent hours of a weekday waiting in line to vote. They likely did not vote. This is a crummy way to run a national election.

The president’s solution was a commission. A bipartisan commission. The commission has a nice website. It seemed to not do anything at all for a few months but now they have held some public meetings. Eventually — this fall, I think? — the commission will deliver a report.

So the Democratic response, then, is a bipartisan commission that will release a report. Republicans at the state level, meanwhile, have been pretty busy getting things done to make voting more difficult. More restrictive voting laws have already gone into effect in multiple states. More laws are on the way in Wisconsin and North Carolina.

Here’s a neat tidbit: There already was a national bipartisan election commission. It was supposed to be a permanent one, established by the Help America Vote act, the Republican Party’s mostly useless response to the tremendous disaster that was the 2000 presidential election. It is called the Election Assistance Commission. There are supposed to be four members, appointed by both parties. What is this commission up to right now? Oh, you know, just being obstructed by Republicans who really hate voting. They refuse to nominate anyone. The House has voted to eliminate the commission.

The president’s plan seems to be to get electoral reform by creating a flawlessly bipartisan list of policies that barely have his fingerprint on them. That plan falls apart, though, when you remember that Republicans just don’t want voting to be easier, and they will not be convinced by Mitt Romney’s lawyer that it is in the party’s interest to make voting easier.

The House GOP is a nightmare, but a better approach would’ve probably involved horsetrading, rather than high-minded bipartisan appeals. Voter ID laws would be fine, actually, if the United States had a free and automatically issued national ID of some sort. We do not have such a thing, because I guess it makes some people frightened of tyranny? Still, that could’ve been part of a deal: One side accepts state voter ID laws, on the condition that acceptable state-issued ID is provided easily, and for free. There is already a long checklist of things reformers want fixed about our elections. Another commission is going to recommend things we already know we should be doing. We don’t need “innovation,” we need more access and fewer obstacles. There ought to be a commission on how to pass what we already know we need.

By: Alex Pareene, Salon, August 9, 2012

August 12, 2013 Posted by | Elections, Voting Rights | , , , , , , , | 2 Comments

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